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Colonial Cases

United States v. Bird, 1865

[embezzlement - burglary]

United States v. Bird

United States Consular Court, Shanghai
5 and 6 July 1865
Source: The North-China Herald, 2 September 1865

 

UNITED STATES CONSULATE-GENERAL.

REPORT of trial held at the United States Consulate General on the 5th and 6th July, 1865, before O. B. Bradford, Acting for the Consul General, and J. F. Seaman Jr., and F. E. Foster, Associates.

UNITED STATES v. PERRY BIRD.

Embezzlement and Burglary with intent.

[This is not an Official report, as it was found impossible to obtain one from the U.S. Consulate.]

PLAINT.

   In the matter in which Hall & Holtz and E. A. Reynolds are Complainants, and Perry Bird, Defendant.  The charges entered by the said Complainants are as follows:-

1st. - That the said Perry Bird, during the months of February and March, A.D. 1865, being then employed as superintendent of the Godowns at Pootung, Shanghai, of the said Hall & Holtz and E. A. Reynolds, did then and whilst he was so employed as aforesaid, receive and take into his possession certain Iron ex "Alexandria," amounting to piculs 253.71 for and in the name of and on account of trhe said Hall & Holtz, his masters, for the purpose of selling the same for the highest price obtainable, and to account to the Hall & Holtz for all monies received by him as the proceeds of the sale of such Iron, and the  said Perry Bird sold the said Iron at and for the price of Tls. 2.25 per picul, and for the entire cargo received the sum of Taels 570.88, and accounted and gave to the said Hall & Holtz the sum of Taels 529.97, leaving a balance unpaid and unaccounted for of Taels 40.90, and the  said money then fraudulently and feloniously did embezzle, and the said Hall & Holtz say that trhe said Perry Bird, in manner aforesaid the  said money the property of the said Hall & Holtz, did  steal, take and carry away.

2nd. - That the said Perry Bird  during the months of March and April, A.D. 1865, being employed as a superintendent of the Godowns of the said Hall & Holtz and E. A. Reynolds, did then and whilst he was so employed as aforesaid, receive and take into his possession certain old iron to a large amount, to wit 115

 tons 7 cwt. 1 qr 10 lbs. For and in the name of and on account of the said Hall & Holtz, his masters, for the purpose of selling the same for the highest price obtainable, and to account to the said Hall & Holtz for all monies received by him as the proceeds of the sale of such old iron, and the said Perry Bird sold the said old iron  for and received the sum of Tls. 3461.12, and accounted and paid to the said Hall & Holtz trhe sum of Tls. 211.50, leaving a balance unpaid and unaccounted for of Tls. 149.62, and the said money then fraudulently and feloniously did embezzle, and the said Hall & Holtz say that the said Perry Bird in manner aforesaid, the said money the property of the said Hall & Holtz, did steal, take and carry away.

3rd. - That the said Perry Bird during the month of September A.D. 1864, being then employed as a superintendent of the Godowns of Hall & Holtz and E. A. Reynolds, did then and subsequently while he was so employed as aforesaid, take into his possession certain chattels, to wit Thirty one Singapore beams, and 2 ½ Tons of coal for and in the name of the said Hall & Holtz, his masters, for the purpose of keeping the same in safe custody, and the said chattels, to wit Thirty one Singapore beams and 2 ½ Tons of coal, then fraudulently and  feloniously did embezzle, and the said Hall & Holtz say that the said Perry Bird in manner aforesaid the  said chattels the property of the said Hall & Holtz, did steal, take and carry away.

4th. - That the said Perry Bird during the year 1864, being then employed as superintendent of the Godowns of the said Hall & Holtz and E. A. reynolds, did then and whilst he was so employed as aforesaid, take into his possession certain chattels, to wit eight kegs Stone coloured Oil Paint for and in the name of and on account of the said Hall & Holtz, his masters, for the purpose of keeping the same in safe custody, and the  said chattels, to wit eight kegs Stone coloured Oil Paint then fraudulently and feloniously did embezzle, and the said Hall & Holtz say that the said Perry Bird in manner aforesaid the said chattels, the property of the said Hall & Holtz, did steal, take and carry away.

5th. - That the said Perry Bird, the Warehouse or Godowns of the said Hall & Holtz and E. A. Reynolds, situated at Pootung, on the 18th day of June, A.D. 1865, between the hours of 9 p.m. on the night of thr 18th June, and 6 a.m. of the 19th June, A.D. 1865, feloniously did break in and enter with intent to commit a felony therein.

   The proceedings opened by the Counsel for the defence admitting the charges if the case was allowed to be proceeded with as a civil case.  But upon the Counsel for the prosecution insisting it should be a criminal case the Counsel for the defence wished to recall his admission.  The following letters were then read:-

COMPLAINANTS to Captain BIRD.

Shanghai, 17th June, 1865.

Capt. BIRD, Pootung.

   SIR, - We regret to state that we can no longer retain your services as Superintendent of our Pootung property, as from circumstances that have come to our knowledge we cannot extend that confidence which we have hitherto reposed in you.  You will please send the keys over at once, and we shall depute a person as soon as practicable to take charge.  We shall require from you a full satisfaction for all property in the place.

Yours obediently,

(Signed), E. A. REYNOLDS, HALL & HOLTZ.

COMPLAINANTS TO U.S. CONSUL GENERAL.

Shanghai, 21st June, 1865.

GEO.  F. SEWARD, Esq.,

Consul General of the U. S. of America.

   SIR, - We have the honor to acknowledge the receipt of a communication from your Consulate informing us that it will be necessary to prefer a charge against Captain Perry Bird in the event of our wishing to prosecute him.  As we consider it a duty, unpleasant though it be, to prosecute, we beg hereby to make the following charge:-

   That Captain Perry Bird was verbally and in writing dismissed from our employ on Saturday last the 17th instant in the forenoon; that the said Perry Bird was further directed to hand over to us the keys of the property then in his charge, which act was not complied with; that Captain Perry Bird did remove off our premises on the afternoon of Saturday aforesaid; that we did not receive the said keys until we sent specially for them on Saturday, 18th id; that between 11 p.m. on Sunday night 128th id. and 1 a.m. on Monday morning the 19th id. the said Perry Bird did also commit a Burglary on our Godown, all of which we are prepared to prove.

Praying for an early trial of such case,

We have the honor, &c.

(Signed).  HALL & HOLTZ, E. A. REYNOLDS.

   Mr. Solicitor LAWRANCE for the prosecution.

   Mr. Counsellor EAMES for the defence.

   The Counsel for the defence said he must object to the irregularity of the proceeding in making a civil action, a criminal case.

   G. GRAY states: - I am the representative of the firm of Hall & Holtz.  I know the defendant has been engaged to Hall & Holtz and E. A. Reynolds as their superintendent and Godown keeper at Pootung; he has been engaged over 12 months in that capacity at a salary of Tls. 200 per month, house &c., to live in, and the use of a sampan found him; that the duty of Bird was to receive cargo, store and protect the same, and only  deliver any cargo on receipt of proper written orders; that on no pretence whatever was Bird allowed to use of give up possession of any of our property, nor was he allowed to sell or dispose of any part or portion excepting by special instructions from either Hall & Holtz or Mr. reynolds, nor was he authorized to make any disbursements on account without their previous knowledge or consent.  At the end of each month Bird always received his salary together with the amount of any necessary outlay for wages of servants that may have been incurred.

   In consequence of a statement made by one of our clerks I accompanied Mr. Cowderoy and Mr. Reynolds to the residence of Mr. Lambert next to and adjoining our property at Pootung.  In presence of these parties I heard Mr. Lambert declare he never lately gave Bird orders to get from our store an order to deliver to him eight keys of Paint and 2 tins Paint Oil.  This order Bird asked our Godown keeper to give him while passing through our store after having received his dismissal from Mr. Cowderoy.

   E.  A. REYNOLDS states: - Perry Bird was employed by me and Hall & Holtz as superintendent of our property at Pootung, and keeper of Hall & Holtz's Godowns.  He has been in our employ about 15 months at a salary of Taels 200 per month paid monthly, a house to live in besides a sampan found him.  In consequence of reliable information, we were compelled to dismiss him from our employ, which we did by the latter dated 17th June.    This letter was sent at about nine or half-past nine in the forenoon of its date.  At half past ten I met Bird in the street, when he presented this letter to me asking what it meant.  I replied "Come with me to Mr. Cowderoy and give him an explanation of reports he has heard of you."  Bird enquired what reports.  I said Mr. Cowderoy had heard of his having sold a quantity of iron at 2 taels, 2 mace, 5 candareens, and accounts and money had been handed in for only Taels. 2.05. I also stated that there was something wrong about the sale of our old iron, and that Mr. Cowderoy and myself had heard of the unauthorized sale by him of some of the Singapore beams.  To the latter he said nothing, but replied to the first accusation by admitting he sold at a higher price than he had accounted for, because he was told to sell at 2.05 taels per picul, and that I would have acted the same.  I immediately replied that I would do no such thing.

   When we reached Mr. Cowderoy's room, Bird admitted the accusations we had made against him, said that he knew he had done wrong, but entreated to be allowed to remain in our service and he would not do so again, which we would not hear of.  He again entreated us to allow him to remain until the Iron Godowns were completed, and finally to remain until the end of the month, all of which we flatly refused, referring him to our letter, and requesting him to hand over the keys and leave the premises as soon as possible, as we wished to send over a person to take charge.  He then left us. I did nothing further that day.

   On Sunday at 1 p.m. I was at Hall & Holtz's and saw the keys of the Godowns brought there from Pootung.  I then learned that Bird had left the premises on Saturday, taking all his personal effects and furniture with him and leaving the keys in an empty room at the mercy of any one.  On Monday, Mr. Cowderoy, Mr. Everall (the newly engaged Superintendent) and myself went to Pootung to place the latter in charge and be present at the handing over of the premises and taking charge of and comparing the stick.  On reaching the Godowns we sent for Bird, handed him the keys and asked him to open the Godown and give over the stock to Mr. Everall.  The Godown lock would not open, notwithstanding the exertions of Bird and two or three Chinese coolies.  The eye of the key was broken in the attempt.  Mr. Cowderoy and myself remarked that it was strange the lock was now so difficult to open.  Bird replied that it was frequently that way, it sometimes opened at once and easily, and again at other times was difficult to open.  Mr. Cowderoy remarked to Bird, "I have frequently been with you to these Godowns and we never had this trouble before."

   Observing some of the Godown windows open, I said I had suspicions that the lock had been tampered with.  And noticing a long ladder close by, I reproved Bird for his carelessness in leaving the windows open, and pointed out how easy it was for any one to enter the Godown through the windows with the aid of a ladder.  Bird said no one could go in, on which mr. Cowderoy and myself raised the ladder, placed it under one of the open windows and both entered the Godown easily, a Chinese (a general overlooker) following us.  On getting to the door we observed the bolts had been recently filed, and one half of the doors, which are double, was clean whilst the other half was soiled by being frequently used.  We said to the Chinaman (Akin) some one has been at foul play here, and as Bird left the premises and had not taken away the keys, we were afraid he (Akin) or some of the workmen about had entered the Godown.  We demanded from him what he knew about it.

   After some hesitation and a promise from us that we would not say anything about it, he related all that had taken place on Sunday night.  At about nine o'clock captain Bird and his boy (a Chinese) came to the premises bringing with them a box and two Oil Tins.  Bird sent his servant through the Godown window by a ladder.  The boy drew the upper and lower bolts of the doors.  Bird then from the outside forced open the two doors, breaking the iron off which receives the bolt of the lock.  Akin did not know all that took place in the godown, but that Bird replaced one case of kerosine Oil and two tins paint Oil.  Eight Tins White Zinc Paint had been replaced on Saturday by Bird in the place of eight tins of Stone coloured paint which he had taken away some time previously.  The paint was taken to and brought from Mr. Lambert's premiers.  Thinking it strange that Bird should visit the premises at that hour of the night, from his bedroom window he watched his conduct, but did not join nor assist him.  he knew Bird was doing wrong.

   He heard him call the watchman, gardener and three carpenters who were sleeping on the premises.  With these and by great exertions he (Bird) took off its hinges the half of the iron door which he had broken.  These doors being heavy iron doors required six men to carry.  They carried it to the door of another Godown on the same row, unhinged the half required, and in its place hinged the half which was broken.  He then with all these men carried the whole or unbroken door, and with some difficulty hinged it to where the first half had been taken from.  Bird, his boy and watchman remained inside, placed the doors together and the bolt so as just to enter, and after a great deal of trouble succeeded in closing the door, and having filed the bolts, got the door bolted.  The three then left the Godown by coming out at the window and down the ladder which they left on the godown platform.  It was the same by which we had entered.  It was about half-past one in the morning when they had finished, and Bird and his boy went away.  Such was Akin's statement.

   Mr. Cowderoy and myself were completely astounded at this information, and as Bird had been dismissed our service, and Hall & Holtz had upwards of a thousand packages of General Stores in the Godowns which had thus been entered, and not knowing what could have been Bird's object in such extraordinary proceedings, Mr. Cowderoy for his own security considered it his duty to have Bird arrested.  We opened the door of thr Godown from the inside, and without saying anything, immediately went to the U.S. Consulate, stated what had occurred, got a warrant out and had Bird and his boy arrested for entering our premises at night.  Mr. Bradford was very particular in asking what damages we laid.  We replied it was no case of damages and we could not claim any.  Bird and his boy returned shortly to the Godowns, having given security in $5,000 to appear and answer all charges.

   Having some experience of Chinese character, and knowing well their testimony was all we had to depend upon , and that it could be tampered with,  we went to the British Consulate, got a summons out against all the Chinese concerned, and next day had their depositions taken before the Mixed Court.  Mr. Cvowderoy and myself attended at the U.S. Consulate to sign on oath the documents requured in this case.  On every occasion we were repeatedly asked by Mr. Bradford to state our damages, which as often we declined to do.  I have no interest whatever in the goods stored in the Godown belonging to Hall & Holtz.  I know nothing about the first iron transaction.  The old iron I was half shares in, it being that which belonged to the Godown blown down last year by the typhoon.  I wrote Bird a severe letter at his officiousness in endeavouring to sell it.

   On a former occasion, finding an increasing propensity on the part of Bird to sell things, I wrote him, distinctly forbidding him to sell anything belonging to me.  I never gave Bird any orders to sell any of the spare material of the Godown.  I am certain Mr. Cowderoy could not have given Bird permission or orders without my consent to sell thirty one Singapore beams, particularly for less than they cost us, and as proof of this I may remark that although several months' accounts have been squared up with Bird, and the sale of the beams took place at the Chinese new year, as yet no accounts or proceeds have been handed in to either Hall & Holtz or myself.  We had every confidence in Bird, and thought the very excellent pay we were giving him would at least keep him honest.

   By Counsellor EAMES. - You have considerable experience in Shanghai, do you not know that it is a frequent occurrence, especially amongst the auctioneers, to have a limit given for articles sent them for sale, and that they obtain more than the limit and yet render account sales and proceeds for only the limit price?

   WITNESS. - In all my experience in Shanghai, and heaving been once an auctioneer myself, I have not known nor heard of a single case, and if I were to send goods to an auctioneer or any one else with a limit and he obtained more, and I heard of it, and he rendered me an account sales and proceeds for only the limit price, I certainly should never send goods to him again and would publish the act to my friends. {This question was put twice with a similar reply.]

   Mr. FOSTER, one of the Associates, said if such an act was to take place it would be a criminal one.

   By Mr. EAMES. - Do you think it was fair or right towards Capt. Bird to have those Chinese before the Mixed Court without his knowledge?

   WITNESS. - We did not think that Capt. Bird after his conduct deserved any consideration from us, and we considered it but just to ourselves when we had made such grave charges against him to allow no time for the Chinese witnesses to be put out of the way, or be tampered with, particularly when one was his own servant, and the other one who had been immediately under him for over twelve months. 

(Court adjourned.)

SECOND DAY.

   H. KNIGHT States: - I am in the capacity of cashier to Hall & Holtz, and to my knowledge it was not usual for Capt. Bird to dispose of any part or portion of the goods entrusted to his charge without first obtaining the consent of either Hall & Holtz or Mr. Reynolds.  On the 2nd June I made the usual monthly settlement with Bird, he rendering me a statement which I supposed to be a true and correct account of all monies in his hands at the time, and I considered that if he had any funds still in his possession belonging either to Hall & Holtz or mr. reynolds, he should have duly informed me to that effect, which was not done.  Up to this time I have not received any money nor accounts from Bird for the thirty one Singapore Beams.

   ADO, Bird's Chinese boy cautioned by the interpreter to tell no lies states: - I am Capt. Bird's boy.  I have been 3 years in his service.  I remember my master selling some beams.  He sold ten, and I cut one in two.  He sold them to a Chinaman about the Chinese new year time.  My master did not send them away.  The Chinaman who bought them came for them.  When taking delivery I gave the Chinaman another beam.  I was afraid my master would be angry with me if he found it out, so I sawed one beam and made two of it.  I got three dollars for the beam as a cumshaw.  I gave the three dollars to Capt. Bird.  I gave them to him because he heard I had sold a beam.  He was angry with me and asked what I had done with the bream.  I said I had sold it to the same Chinaman who had bought the other ten.  He abused me and asked what price I got for it.  I told him three dollars.  He demanded the money from me.  I gave it him.  He put it in his pocket and told me not to do so again.

   I remember the night of the Sunday and morning of the next day.  Capt. Bird took me with him to the Godowns.  At first the door was not open, it was locked.  I went into the Godown through one of the open windows.  I got through the window by a ladder placed against the Godown.  I got down inside by some goods which were piled against the side.  On landing inside I undid the bolts of the door.  I did not open the door.  It was pushed open from inside by Capt. Bird.  When he came in by the open door the watchman, gardener and two carpenters also came in.  Capt. Bird filled up a tin of oil.  I think it was Coal Oil, I thought so by the smell.  I do not know where Capt. Bird got the oil from.  I do not know whether it came from Hongque or not.   I do not know what else was done in the Godown.

   We changed the doors, we got one from No. - Godown.  Capt. Bird, the gardener, watchman, two carpenters and myself carried them from one Godown to the other.  The broken door we carried back to where we had got the other.  We fastened them by pushing against them from the inside until they were quite close.  Capt. Bird, one of the carpenters, and myself, were inside; we all got out of the window.  It was about one o'clock in the morning.  When we were finished we did nothing else.

   AKIN, summoned by Captain Bird, being warned by the interpreter to tell no lies, states: - I live at Pootung point, and am over looker under Capt. Bird.  I have been there about 15 months.  I remember the Sunday night and Monday morning - 18th and 19th June.  I did not go into the Godown on that night to do anything.  I remember captain Bird and some Chinese going into the Godown.  I was awakened by hearing a noise of some one trying to get into the Godown.  I saw Captain Bird, the watchman, gardener, and two carpenters, outside the Godown door.  They were trying to open the door from the outside by pushing against it.  I saw them force the door open.  I saw Capt. Bird and the others go into the godown.  I did not see what they did when in the Godown.  I saw them take away one of the Godown doors to No. - Godown.  They took the door from No. - Godown and put it in the place of the one they had taken away.  I did not see any one come out of the window.

   I know Captain Bird sold some beams.  It was about Chinese new year time.  On one occasion he sold twenty beams, on another he sold ten.  I heard of his boy having sold one for three dollars.  It told him it might be all proper for him to sell beams, but it was not right for his boy to sell.  Capt. Bird called his boy and took the three dollars from him.  I know of Captain Bird having sold some Iron; he told me that he had profited and gave me a cumshaw of Taels 15.  I also know Captain Bird sold some coals, belonging to hall & Holtz.  He sold them for $15, and gave me $7.50.

   Another Chinese witness was called, but he was so stupid from either drink or opium, that the interpreter declared his evidence could not be relied upon. 

   The watchman, gardener, and one carpenter were at hand to give further evidence, but the Counsel for the defence stated that against such evidence and not wishing to further detain the Court, he had to admit the charges, excepting that of Burglary with felonious intent, and begged that, although contrary to precedent and the order of all Courts of law, he might be allowed to close the case.  After some discussion, it was agreed that Captain Bird should behave the benefit of his Counsel closing the case.

   The Court adjoiurned, it being understood that judgment would be given next day.

 

UNITED STATES v. PERRY BIRD, Burglary.

JUDGMENT.

   We find the defendant Not Guilty of embezzlement under the first four charges, nor of Burglary with felonious intent under the fifth charge.

   That he shall pay and deliver to Messrs. Hall & Holtz and E. A. Reynolds the amount claimed by them as remaining unpaid, and specified in the first and second charges, amounting to taels 190.53 and also, for the Coals specified in the testimony to have been sold, the amount of Dollars fifteen, and for the 31 Beams described in the third charge the full amount received by him as the proceeds of such sale.

(Signed) O. B. BRADFORD, Acting Consul General.

Assented to.  (Signed) F. E. FOSTER. J. F. SEAMAN, Jr.

U.S. Consulate general.  Shanghai, China, July 7th, 1865.

 

(Copy of account).

UNITED STATES CONSULATE GENERAL, SHANGHAI, CHINA, July 10th, 1865.

Messrs. E. A. REYNOLDS & T. COWDEROY.

REYNOLDS & COWDEROY vs. BIRD.

 

June20For Oath & Filing plaint 2.10 Docket 1.00

3.10

  Issuing writ 1.50 E. A. reynolds ditto 2.50

4.00

  Ditto on boy 2.50, 2 Fees 1.00 Bail Bond 1.00

4.50

  Executing warrant 3.00, order for answer 2.00

5.00

  Deposition Mr. Cowderoy 4.00

4.00

  Filing Bond and Writ, 0.20, ditto deposition 0.10

0.30

 29Oath to filing specific charges prepared by P.A. Myburgh, Esq.

2.10

  Order for hearing, 2.00, Copy of Indictment, 12.00

14.00

  Attesting for hearing, 2.00, Order for hearing, 2.00

4.00

  Oath to and filing answer, 2.10, order for hearing, 2.00

4.10

  Marshall, E.A.H. Summons, 1.50, Ditto copy of plaint, 1.00

2.50

  Two fees, 0.50, Filing papers, 0.20

0.70

  Carried forward (& brought forward)

48.00

 30Issuing summons to defendant 0.50, Summons to Plaintiff 0.50

1.00

  Subpoena two associates

1.00

July3Issuing subpoena to writ for defendant

1.00

  Marshall, E.A.R. two associates

2.50

  Ditto Summons, 1.50, Notice to Plaintiff 3.00

4.50

  Two fees, 1.50, Filing 0.50

2.00

 5Marshall, E.A.R. Two subpoenas (Chinese)

2.50

  Transfer 1.00, Filing 0.20

1.20

  Intelligible only to writer

0.50

  Marshall, E.A.R. 1.25, two fees 0.50

1.75

  Total

60.85

 

Here the civil case was dismissed by consent of Counsel for Plaintiffs, and the criminal suit begins in which Mr. Bird pays the costs.

 

[With reference to the above it must be understood that the complainants never entered a civil charge, but from the commencement made it a criminal one by filing the charges upon oath, at the U.S. Consulate according to U. S. Consular law, and further the counsel for the plaintiffs conducted the case as a criminal one from the commencement.]

 

 

EDITORIAL.

 

INEXPERIENCE in  judicial forms, and a somewhat misty idea of the law of evidence may be adduced as excuses for the curious judgment pronounced by Mr. Acting Consul-General Bradford in the Bird case, which we publish to-day.  On no other grounds can we account for the finding, which to our mind is diametrically opposed to the sense of the testimonies brought forward.  Were the assertions against the defendant supported solely by the assertion of Akin the overlooker, and Ado the boy, we should attach little weight to them, but the evidence was circumstantial as well as direct, and left no doubt that with the intent to do something or other the defendant had broken into the godowns during the night of a day subsequent to his dismissal.  What that design was can only be judged by his actions after effecting an entrance; but in the eye of the law he was undoubtedly guilty of burglary.  So it did not appear to the Court, for they brought him in not guilty under the fifth charge.

   The judgment, when put into English, proceeds in the next place to set forth what we cannot but believe to be a most fatal precedent - that when a paid servant is entrusted with the sale of goods, under instructions not to sell below a certain price, any monies obtained by selling above that limit price are rightfully his, unless he be found out.  For Bird was either in the right or in the wrong in appropriating the surplus of Taels 40.90 accruing from the higher rate at which the iron was sold.  If he was in the right, why direct him to "pay and deliver to Messrs. Hall & Holtz and E. A. Reynolds the amount claimed as remaining unpaid;" if in the wrong, how was it that he was acquitted of the charge of embezzlement.

   There is but one way out of this dilemma, viz., to assert that the money was held by Bird as still due to Hall & Holtz, and that he was therefore guilty of no more than neglect in accounting for it.  But the defendant himself, by his assertion to Mr. Reynolds, and the defendant's counsel, by the plea of supposed custom amongst auctioneers and others, effectually closed this door of escape.  Bird had evidently no intention of returning the money inasmuch as he believed that it was his by right. 

   The same remarks apply to the sale of the Singapore beams.  The defendant must have known what the beams cost, and in selling them without authority at a lower figure, the presumption is that he had no intention of rendering account sales. At any rate he did not do so, although some five months had elapsed between the date of sale and his dismissal.  There was no attempt made to controvert the facts that the beams were sold, and that no account was rendered, and if this does not amount to at least a presumption of embezzlement we confess ourselves utterly devoid of common sense.  But when we add to this that Bird concealed the theft committed by his boy, and pocketed the three dollars cumshaw given by the purchaser of the beams, the suspicion becomes to our mind a certainty.

  However, so it did not appear o the Acting Consul-General, for on the third charge also the defendant was brought in not guilty of embezzlement.  We have already put one clause of this astounding judgment into English.  Let us now see what the clause just alluded to means.  It means simply this, that when goods are committed to the care of a paid servant, with orders not to sell them without special instructions, that servant is at liberty to disobey the orders he has received, to sell the goods at a loss, to give no account of the sale and return no proceeds, although the goods have been sold for ready money, and, finally, that with every presumption against him that servant will, when brought to the bar of his country, be acquitted of embezzlement, and be required only to pay the amount which for his own ends and to the actual loss of his employers he has realised.

   We must congratulate the defendant on the Court which tried him.  he was indeed fortunate beyond the lot of most men, but we are much mistaken if this decision, which to us seems absurdly ludicrous, will not have the effect of making European employers particularly cautious when hiring American servants.  If no protection is extended to property confided to the charge of Americans the result must be that an American subject will find it vain to apply for the situation of godown-keeper or overseer.  We therefore consider that Mr. Bradford's judgment is not only diverging in itself when taken in connection with the evidence, and unjust to the complainants, but that it inflicts a deadly injury on a class of American citizens which comprises most estimable and trustworthy members.

   We would suggest an appeal to the Consul-General, but, in view of the muddle which the court made of the case, it is impossible to say whether Bird appeared as a prisoner or a defendant.  The prosecutors refused to enter a civil action, although pressed to do so, and the judgment itself was docketed "Burglary."  Yet the accounts furnished to the complainants speaks of "the civil case" (which in reality had never any existence) having been dismissed, which it certainly never was.  If the case was in reality criminal, then the prisoner has got off by a piece of good fortune which does not often attend gentlemen in his unfortunate position.  If, on the contrary, it was civil, the complainants are entitled to a re-hearing before the Consul-General, and in that case we can have no doubt as to the result.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School